92 Decision Citation: BVA 92-17479
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-45 399 ) DATE
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THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for residuals of a
subdural hematoma claimed as a brain tumor.
3. Entitlement to service connection for arthritis of the
thoracic spine.
4. Entitlement to service connection for arthritis of the
lumbar spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife.
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to
September 1945.
The issues of entitlement to service connection for hearing
loss and residuals of a subdural hematoma essentially came
before the Board on appeal from a rating decision dated
February 24, 1987, from the St. Petersburg, Florida,
Regional Office (hereinafter RO) of the Department of
Veterans Affairs (VA). He was notified of the denial of his
claims on March 30, 1987. A notice of disagreement was
received on March 23, 1988. No further action was
undertaken by the RO until a statement was received from the
veteran on February 28, 1990, requesting to reopen his claim
of entitlement to service connection for residuals of a
subdural hematoma along with his new claim of entitlement to
service connection for a back disorder.
A rating decision dated March 8, 1990, confirmed and
continued the denial of the veteran's claim of entitlement
to service connection for residuals of a subdural hematoma
also alleged as a brain tumor secondary to a head injury in
service. Service connection for arthritis of the thora-
columbar spine was also denied. A notice of disagreement
was received on March 12, 1990. A statement of the case was
issued on June 4, l990. A substantive appeal was received
on October 15, 1990. The veteran and his wife attended a
personal hearing at the RO on February 25, 1991. A
supplemental statement of the case was issued on April 29,
1991.
A statement from the veteran received on May 21, 1991, was
considered as a notice of disagreement regarding the issues
of entitlement to service connection for the thoracic and
lumbar spine disorders. A supplemental statement of the
case was issued on June 19, 1991. A statement received on
June 28, 1991, from the veteran was considered in lieu of a
substantive appeal.
The case was received at the Board on October 9, 1991, and
docketed on October 11, 1991. The veteran's accredited
representative, the Disabled American Veterans, added
additional written arguments to the record on March 25,
1992. The case is now ready for appellate action.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by the veteran, in essence, that he
developed a hearing loss due to his exposure to acoustic
trauma associated with significant combat duty in the
European Theater during World War II. Moreover, he argues
that in addition to his already established service
connected scar of the frontal region of the scalp incurred
from a gunshot wound to the head in September 1944, he also
developed a subdural hematoma at that time although such was
never clinically demonstrated until following separation
from service. He also argues that he developed arthritis of
the thoracic and lumbar spine due to a back injury in
service.
DECISIONS OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the evidence is against the grant
of service connection for a hearing loss disability.
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the evidence is against the grant
of service connection for residuals of a subdural hematoma
claimed as a brain tumor.
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the evidence is against the grant
of service connection for arthritis of the thoracic spine.
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the evidence is against the grant
of service connection for arthritis of the lumbar spine.
FINDINGS OF FACT
1. The veteran served on active duty from July 1942 to
September 1945.
2. A subdural hematoma claimed as a brain tumor was not
demonstrated during service or until approximately September
1969, almost 25 years following separation from service and
is not shown to be related to any incident of service, to
include the superficial gunshot wound of the scalp.
3. The veteran's intracranial mass lesion of unknown
etiology charaterized as subdural hematoma was first
demonstrated in September 1969, and manifested by a two
month history of sudden onset of headaches, is not shown to
be etiologically related to the veteran's service-connected
scar of the frontal region of the scalp.
4. Neither arthritis of the thoracic nor lumbar spine was
demonstrated during service, at separation or until
approximately more than 20 years following separation from
active service and neither is shown to be causally related
to any incident thereof.
5. A hearing loss disability for VA purposes has not been
demonstrated.
CONCLUSIONS OF LAW
l. A hearing loss disability for VA purposes was not
incurred in or aggravated by wartime service, nor may it be
presumed to have been incurred therein. 38 U.S.C. §§ 1101,
1110, 1112, 1113, 1154(b), 5107 (l992); 38 C.F.R. §§ 3.307,
3.309, 3.385 (l99l).
2. Residuals of a subdural hematoma claimed as a brain
tumor were not incurred in or aggravated by wartime service
nor may they be presumed to have been incurred therein.
38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R.
§§ 3.307, 3.309.
3. Residuals of a subdural hematoma claimed as a brain
tumor are not proximately due to or the result of a
service-connected disease or injury. 38 U.S.C. § 5107;
38 C.F.R. § 3.310(a) (l99l).
4. Arthritis of the lumbar spine was not incurred in or
aggravated by wartime service, nor may it be presumed to
have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112,
1113, 1154, 5107; 38 C.F.R. §§ 3.307, 3.309.
5. Arthritis of the thoracic spine was not incurred in or
aggravated by wartime service nor may it be presumed to have
been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113,
1154, 5107; 38 C.F.R. §§ 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, we note that we have found that the veteran's
claims are "well grounded" within the meaning of 38 U.S.C.
§ 5107. That is, we find that he has presented claims which
are plausible. We are also satisfied that all relevant
facts have been properly developed. There is no indication
that there are additional pertinent outstanding records
which have not been obtained. No further assistance to the
veteran is required to comply with the duty to assist him as
mandated by 38 U.S.C. § 5l07.
I. Hearing Loss
With respect to this issue, the veteran primarily maintains
that he developed a hearing loss due to his exposure to
significant combat duty while serving in the European
Theater during World War II. Under the applicable laws and
regulations, service connection may be granted for a
disability resulting from disease or injury incurred in or
aggravated by wartime service. 38 U.S.C. § 1110. Moreover,
we note that where a veteran who served ninety (90) days or
more during a period of war and a sensorineural hearing loss
becomes manifest to a degree of 10 percent or more within
one year from date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Furthermore, we note that service connection for impaired
hearing shall not be established when hearing status meets
certain pure tone and speech recognition criteria. Hearing
status shall not be considered service connected when the
thresholds for the frequencies of 500, 1,000, 2,000, 3,000
and 4,000 hertz are all less than 40 decibels; the
thresholds for at least three of these frequencies are
25 decibels or less; and speech recognition scores using the
Maryland CNC test are 94 percent or better. 38 C.F.R.
§ 3.385.
Also, we note that in the case of any veteran who engaged in
any combat with the enemy in active service with a military,
naval, or air organization of the United States during a
period of war, campaign, or expedition, the Secretary shall
accept as sufficient proof of service connection of any
disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other
evidence of service incurrence or aggravation of such injury
or disease, if consistent with the circumstances, condi-
tions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service, and, to that end, shall resolve
every reasonable doubt in favor of the veteran. Service
connection of such injury or disease may be rebutted by
clear and convincing evidence to the contrary. The reasons
for granting or denying service connection in each case
shall be recorded in full. 38 U.S.C. § 1154.
A review of the veteran's service medical records is
negative for any finding or diagnosis reflective of a
recognized hearing loss. When he was examined in July 1942,
for induction purposes, hearing acuity testing was normal at
20/20, bilaterally. Moreover, we note that no ear pathology
was specifically found on an ear, nose and throat consul-
tation in October 1944. While he complained of decrease in
hearing at that time, his hearing acuity was normal at
15/15, bilaterally. His eardrums were normal. Signifi-
cantly, when the veteran was examined in September 1945, for
separation purposes, hearing acuity testing was normal, at
l5/l5, bilaterally. Importantly, a hearing loss disability
for VA purposes, including a sensorineural type, is not
demonstrated clinically by the post service evidence of
record. Accordingly, the grant of service connection for a
recognized hearing loss is not for application in this
case.
II. Residuals of Subdural Hematoma
Here, the veteran maintains that he developed a subdural
hematoma or brain tumor as a result of a gunshot wound to
the head during World War II. Service connection has
already been established for a scar involving the frontal
region of the scalp evaluated as noncompensable over the
many years following separation. Under the pertinent laws
and regulations, where a veteran served for ninety (90) days
or more during a period of war and a brain hemorrhage or
thrombosis or malignant tumor becomes manifest to a degree
of 10 percent or more within one year of date of termination
of such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of
such disease during the period of service. This presumption
is rebuttable by affirmative evidence to the contrary.
38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. 3.307, 3.309.
A historical review of the record shows that although it was
initially thought that the veteran's laceration of the scalp
associated with a gunshot wound was severe, the clinical
findings noted in the service medical records as well in the
Surgeon General hospital admission records show that such
injury involved no more than a slight superficial laceration
of the scalp with no cranial artery involvement identified.
While hospitalized between approximately September 19, 1944,
to October 14, 1944, comprehensive testing including a skull
X-ray study was negative for any significant abnormality
including subdural hematoma of the brain. Moreover, no
pertinent pathology was noted on examination in September
1945, for separation purposes.
The post service evidence of record first referring to
evidence of an intracranial mass lesion of unknown etiology
characterized as subdural hematoma by special testing and
manifested by a two month history of onset of headaches
dates from September 1969, almost 25 years following the
veteran's separation from active duty. There has been no
clinical demonstration that it is causally related to any
incident of service, especially in view of the lack of
significant findings noted in service, at separation or for
many years following separation. Also, the clinical
evidence does not suggest nor does any physician state that
the subdural hematoma as first objectively identified in
1969, is etiologically related to the veteran's service-
connected scar in the frontal region of the scalp evaluated
as noncompensable. 38 C.F.R. § 3.310(a). Accordingly, the
grant of service connection for residuals of subdural
hematoma claimed as brain tumor is not for application in
this case.
III. Arthritis of the Lumbar Spine
Here, we note that where a veteran who served ninety
(90) days or more during a period of war and arthritis
becomes manifest to a degree of 10 percent or more within
one year from date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C. §§ 1101,
1112, 1113; 38 C.F.R. § 3.307, 3.309.
The veteran maintains that he developed arthritis of the
lumbar spine due to back injuries in service. In this
connection he has submitted a statement from Otto J. Flick,
a former service comrade who remembered the veteran injuring
his back at the same time his head was wounded in September
1944. With this in mind, we note that a review of the
veteran's service medical records to include the records
from the Surgeon General's office, is entirely negative for
any complaint, finding or diagnosis of a lumbar spine
disorder, including arthritis. Significantly, we note that
when he was examined in September 1945, for separation from
active duty, an objective evaluation of the lumbar spine on
musculoskeletal evaluation was negative for any pertinent
defect. The pertinent post service evidence of record first
reflecting the presence of low back symptoms associated with
arthritis dates from almost 40 years following the veteran's
separation from active duty and the arthritis is not shown
to be causally related to any incident of service. Accord-
ingly, a grant of service connection for arthritis of the
lumbar spine is not for application in this case.
IV. Arthritis of the Thoracic Spine
With respect to this issue, we note that the veteran's
service medical records including his examination in
September 1945, for separation from active service are
negative for any complaint, finding or diagnosis of such
disorder. The post service evidence of record likewise as
in the case of the lumbar spine is negative for any
pertinent pathology until many years following separation
from active service, and the arthritis is not shown to be
related to any incident thereof. Accordingly, the grant of
service connection for arthritis of the thoracic spine is
not for application in this case.
ORDER
Service connection for a hearing loss disability is not
established. The appeal is denied.
Service connection for residuals of a subdural hematoma
claimed as a brain tumor is not established. The appeal is
denied.
Service connection for arthritis of the lumbar spine is not
established. The appeal is denied.
Service connection for arthritis of the thoracic spine is
not established. The appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.